Will Republicans fight as hard as the Democrats did?

By Thomas L. Jipping
web posted October 9, 2000

It is a presidential election year and different parties control the White House and the Senate. According to the New York Times, the party controlling the Senate has in the past been "determined to bury" the president's judicial nominations because they are simply "too precious to give up." Often killing nominations by denying them Judiciary Committee hearings or final Senate votes, the majority is hoping its nominee will be elected president in November and can nominate better individuals to fill the current vacancies.

The year is 1992. A Republican is in the White House and Democrats control the Senate. Their strategy allows 59 nominees to expire when the Senate adjourns. Bill Clinton does win the presidency and, by inauguration day 1993, more than 110 vacant judicial positions await his nominees. Despite an "opposition" Senate for six of his eight years in office, his 369-1 appointment run is the second highest total in American history.

Today, in another election year when different parties control judicial nominations and confirmations, a chorus routinely accuses Senate Republicans of blocking Clinton nominees. Insisting that the confirmation process this year follow the 1992 pattern, however, they are not telling the whole story.

Not surprisingly, Democrats never mention the 59 nominees of President Bush they refused to confirm in 1992, or compare that record to the 37 nominees in the process today (32 if you don't count individuals nominated in just the last few weeks). Instead, they point to the 66 nominees they did confirm in 1992. But liars figure and figures lie.

Orrin Hatch

Judicial vacancies topped 100 for 40 straight months when Democrats ran the Senate in the early 1990s. Higher vacancies create pressure for more confirmations. By contrast, only 63 vacancies exist today; Judiciary Committee Chairman Orrin Hatch reminds us that the Clinton Justice Department has said this amounts to "virtual full employment" for the judiciary. Instead of pulling random numbers out of the air, though, a more useful yardstick compares total annual confirmations as a percentage of the vacancy level at the beginning of the year. The confirmation-to-vacancy rate this year is already 49 per cent, almost identical to the Democrats' 51 per cent rate in 1992, the year they say should be the benchmark.

Democrats, not Republicans, recently blocked confirmation of more Clinton judicial nominees, rejecting the majority's offer to confirm four more nominees to the U.S. District Court. This would have brought the GOP's confirmation-to-vacancy ratio this year to 54 per cent, exceeding the Democrats' performance in 1992. Democrats rejected the offer.

The confirmation facts speak for themselves. Mr. Clinton has appointed 47 per cent of all the judges in full-time service, and appointed them at a faster rate than President Reagan, who even had a Senate of his own party for six of his eight years in office. More full-time judges today were appointed by Mr. Clinton than by Mr. Reagan and Mr. Bush combined. Vacancies averaged 116 when Democrats ran the Senate, but have averaged 71 since Republicans took over. Vacancies have been higher than today in just 22 of the 117 months (or 81 per cent of the time) since Congress last significantly expanded the judiciary.

Democrats have long been far more aggressive in promoting the kind of activist, political judiciary that undermines our freedom than Republicans have been in promoting the restrained, balanced judiciary America's founders intended. Democrats have filibustered more nominees, defeated more nominees in the Judiciary Committee, and refused to take final Senate votes on more nominees than Republicans ever have.

As a result, activist judges dominate the federal bench. Clinton judges have ruled that school boards cannot begin meetings with prayer and voters cannot impose term limits even on state legislators. Clinton judges have ruled that young thugs have a constitutional right to roam the streets all night without supervision, that abortion clinics need not observe the same health and safety standards as other medical facilities, and that drunks cannot be required to attend Alcoholics Anonymous because it is a "religious" program. Clinton judges have argued that the Constitution should impose virtually no restraint on the federal government's regulatory power. A Clinton judge recently ruled that a foreign homosexual cross-dresser is a member of a "social group" allowing him to seek political asylum in the United States.

A 1997 resolution adopted by Senate Republicans said such judicial activism "threatens the basic democratic values on which our Constitution is founded." It strips from the people the power to govern themselves and to define the culture. Enough is enough. Confirmations are high, vacancies are low, the damage to America will continue as long as these activists remain on the bench. In the closing days of the Clinton presidency, Senate Republicans should finally act on their own words by refusing to confirm more Clinton activist judges. Let the people decide in November.

Tom Jipping is the director of the Center for Law and Democracy at the Free Congress Foundation.

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